O.S.39/20131Prl. S.C.J. Court, Ananthapuramu
IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE ::
ANANTHAPURAMU
PRESENT:- Sri P.Srinivasa Rao, Addl. Senior Civil Judge, Ananthapuramu, (FAC) Prl. Senior Civil Judge, Ananthapuramu.
Monday, the 22nd day of July, 2019
ORIGINAL SUIT NO.39/2013
Between :
1. K.Kullayamma, w/o Venkatesulu, Hindu, 50 years, Narpala village and Mandal
2. G.Venkataramanamma, w/o Meenakshi Naidu, Hindu, 45 years, cultivation, Chennampalli village, B.K. Samudram Mandal
3. Venkatalakshmi, w/o Mallikarjuna, Hindu, 40 years, cultivation, Pillalapalli village, Kalyandurg Mandal
4. Ramadevi, w/o Ramachandra, Hindu, 35 years, cultivation, Modugupalli village,
Putlur Mandal... Plaintiffs
And
K.Kullayappa, s/o Late Rangaiah, Hindu, 45 years, cultivation, Chennampalli village,
B.K.Samudram Mandal... Defendant
This suit coming on 8-7-2019 for final hearing before me in the presence of Sri A.Suresh Kumar, Advocate for the plaintiffs, and of
Sri B.Rajasekhar, Advocate for the defendant, and upon hearing both sides and upon perusal of the available material on record this court delivered the following :-
J U D G M E N T
The plaintiffs filed suit against the defendant for partition and separate possession of plaint schedule properties into 5 equal shares
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and to allot 4/5th share to the plaintiffs with metes and bounds and costs.
2.The brief averments of the plaint are as follows :
The plaint schedule items 1 and 2 properties are ancestral properties of plaintiffs and defendant. Originally the plaintiffs, defendant and their father Rangaiah constituted Hindu joint family and enjoyed the plaint schedule properties jointly. Their father Rangaiah and their mother died leaving behind the plaintiffs and defendant as their legal heirs. After the death of their parents, the plaintiffs and defendant are in joint possession and enjoyment of the plaint schedule properties. The plaintiffs and defendant are having 1/5th share in the plaint schedule properties. The defendant being the sole male member in the family managing the properties on behalf of the joint family.
There are misunderstandings arose between the plaintiffs and defendant and the defendant taking the advantage of the absence of the plaintiffs, acting adverse to the interest of the plaintiffs. The defendant also making sincere efforts to create some nominal documents in favour of third parties to detriment the right of the plaintiffs over the plaint schedule properties. The plaintiffs demanded the defendant for partition of the plaint schedule properties into 5 equal shares and to allot one such share each of to them and the defendant declined to do so. Hence, the plaintiffs constrained to file the suit.
3.The defendant resisted the suit and filed written statement. His case, in brief, is as follows:-
The allegations made in the plaint are all false and specifically denied. The plaintiffs are his sisters and their father Rangaiah died in
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the year 2001. During lifetime of his father, he performed marriages of plaintiffs and also valued the plaint schedule properties and given cash to all the plaintiffs in accordance with their shares and plaint schedule properties have been given to the defendant in the presence of elders and family members. The plaintiffs have no manner of right or interest in the plaint schedule properties and the plaintiffs never enjoyed the schedule properties jointly along with defendant and he is in exclusive possession of the schedule properties. Since the value of the properties have been increased, the plaintiffs hatched a plan to defeat the rights of the defendant and filed the unjust suit. There is no cause of action to file the suit. The suit is devoid of merits and deserves to be dismissed.
Accordingly, prayed to dismiss the suit.
4.On the above pleadings, on 13-4-2016, my learned predecessor has framed the following issuesfor trial :- (1) Whether the plaint schedule properties are the
ancestral properties of plaintiffs and defendant ?
(2) Whether the plaintiffs and defendant are in joint
possession and enjoyment of the plaint schedule
properties ?
(3) Whether the plaintiffs are entitled for 4/5th share in
the plaint schedule properties ?
(4) To what relief ?
5.On behalf of the plaintiffs, the 2nd plaintiff herself examined as
PW.1. However, no documentary evidence adduced by the plaintiffs.
6.On behalf of the defendant, Dws.1 and 2 are examined. DW.1/
K.Kullayappa is the defendant and DW.2 G.Lakshmi Reddy is witness.
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7.Heard arguments on both sides. The learned counsel for the defendant also filed written arguments in addition to oral arguments.
ISSUES No.1:-
8.I have carefully perused the oral and documentary evidence adduced by plaintiffs and defendant. As seen from the evidence on record there is no dispute that the plaintiffs and defendant are siblings and Rangaiah is their father. There is no dispute that Rangaiah died in the year 2001 and thereafter, his wife also passed away. It is also not in dispute that the father of the plaintiffs performed the marriages of plaintiffs and the plaintiffs have been living with their family members at their matrimonial home. It is the case of the plaintiffs that the plaint schedule properties are ancestral properties. The defendant in his written statement himself admitted that the schedule properties are ancestral properties of his father. The defendant himself clearly pleaded in his written statement that the schedule properties are ancestral properties of his father. As per Sec.58 of Indian Evidence Act, admitted facts need not be proved. In the light of the pleadings of the plaintiffs in the plaint and in the pleadings of the defendant in his written statement, this court is of the clear opinion that the schedule properties are ancestral properties of plaintiffs and defendants. In view of the above circumstances, this Court has no hesitation to come to the conclusion that the schedule properties are ancestral properties of plaintiffs and defendant. In the light of the above admission in the pleadings of defendant, I am of the view that the plaintiffs need not further prove that the suit lands are the ancestral properties. The plaintiffs clearly established that the plaint schedule properties are
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ancestral properties. Accordingly, this issue is answered in the affirmative and in favour of the plaintiffs.
ISSUE Nos.2 and 3:
9.These two issues are inter-related with each other and accordingly, this court is inclined to discuss these two issues together to avoid unnecessary repetition and for the sake of brevity.
10.The case of the plaintiffs is that their father died intestate in the year 2011 and later their mother also died and since then they along with the defendant are in joint and constructive possession of the schedule property. It is further case of the plaintiffs that they demanded the defendant for partition of the plaint schedule properties into five equal shares and to allot one such share to them with metes and bounds and the defendant declined to do so and he tried to alienate the schedule properties to third parties with a view to defeat their legitimate share in the schedule properties. On the other hand, the sum and substance of the case of the defendant is that their father performed marriages of plaintiffs and at that time their father had given the share of plaintiffs in cash and their father died in the year 2001 and therefore, the plaintiffs being daughters are not entitled to seek partition of the schedule properties, and accordingly, prayed to dismiss the suit. The learned counsel for the defendant vehemently argued that the marriages of plaintiffs took place long back and the plaintiffs being daughters have no right in the schedule properties. The learned counsel for the defendant further submitted that the father of plaintiffs and defendant died much prior to the amendment to Hindu
Succession Act i.e., Act 39 of 2005 and therefore, the plaintiffs being daughters have no right in the ancestral properties, as their
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father died in the year 2001 i.e. much prior to the amended Hindu
Succession Act i.e., Act 39 of 2005 and the plaintiffs colluded together with each other and filed suit fraudulently with a view to harass the defendant.
11.Now let me discuss what are the rights of the daughters in coparcenary properties before and after the 2005 amendment.
A coparcenary is a group of male members either by birth or adoption and now (after 2005 amendment Act, the daughters are also considered as coparceners) and coparcenary property is the property which has been inherited intestate by the male member after the death of his father. The Hindu Succession (Amendment) Act, 2005 brought the change in the law creating the right of the daughters (which was not
earlier provided to the daughters, as they were not considered
as coparceners) in the ancestral property and it is only after 9 th
September, 2005 the right have been created and the sole purpose of the amendment was primarily gender justice I,.e., equality of women in the matters of succession and associates properties right and after 2005 Amendment Act, Section 6 (1) of the Hindu Succession Act, 1956 has declared a daughter to be a coparcener as soon as birth right in her own right.
12.To prove her case, the 2nd plaintiff herself examined as PW.1 and filed her examination-in-chief in the form of chief affidavit and wherein she just reiterated the plaint averments. As such, the examination-in- chief of PW.1 is nothing but replica of plaint and therefore, there is no need to discuss the examination-in-chief of PW.1 once again to avoid unnecessary repetition and for the sake of brevity. PW.1 in her evidence testified that as the schedule properties are their ancestral
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properties, they are entitled 1/5th share each in the schedule properties along with defendant. The learned counsel for the defendant has cross- examined PW.1 and in her cross-examination, PW.1 stated that her marriage was performed in the year 1984 and she also admitted that all the plaintiffs marriages are performed by their father at about 25 years back and since then they are in the houses of their husbands. She also categorically stated that her father died in the year 2001. She denied the suggestion that her father had given cash towards their shares and their father had given schedule property to the defendant. To rebut the case of plaintiffs, the defendant himself examined as DW.1 and filed his evidence in the form of chief-affidavit and wherein he substantially reiterated written statement averments. Therefore, the chief examination of DW.1 is nothing but replica of written statement. In support of his evidence, he also examined G.Lakshmi Reddy as DW.2.
Dws.1 and 2 in their evidence clearly testified that the schedule properties are ancestral properties of defendant and the father of plaintiffs and defendant performed marriages of plaintiffs and given their share in cash and also given the schedule property to the defendant and the father of the defendant died in the year 2001 and since then the defendant became absolute owner of schedule properties. The learned counsel for the plaintiffs has cross-examined
Dws. 1 and 2. In cross-examination DW.1 stated that his father had given Gold to the plaintiffs towards their shares and there was no registered document to that effect and he does not know the plaintiffs have executed any deed relinquishing their share in the schedule properties and there is no document in proof of the payment of cash to the plaintiffs towards their share. DW.2 in his cross-examination stated
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that during life time of Rangaiah, the plaintiffs, defendant and their father lived jointly and there is no document to show that the defendants relinquished their rights in the schedule property.
13.I have carefully considered the evidence brought on record. The plaintiffs contended that they are in joint possession of the schedule property along with defendant and they are entitled 1/5th share each in the schedule properties. The plaintiffs' plea and their evidence is that their father died in the year 2001. It is also their case that even as per the amended Hindu Succession Act by the Central Government i.e., Act 39/2005 also they became coparceners and entitled to claim share in the ancestral properties. There is no dispute that the father of the plaintiffs and defendant is died in the year 2001. It is not in dispute that the marriages of plaintiffs took place in the life time of their father and almost in between 25 to 30 years before filing of the suit. But, it is to be considered whether the joint family is in existence by the date of coming into force of Act 39/2005 to consider that the suit schedule properties are ancestral properties. To decide the same, the crucial point is the date of death of the father of the plaintiffs and defendant. If the plaintiffs father died subsequent to the amended Hindu Succession
Act i.e., Act 39/2005, it can be said that there was joint family consisting of the plaintiffs father and his children and including the plaintiffs. If the plaintiffs father died prior to the Act 39/2005, it can be said that there is no joint family in existence as succession opened in view of the Section 6 of Hindu Succession Act prior to its amendment.
14. Section 6 of Hindu Succession Act prior to amendment as reads as follows:-
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Devolution of interest in coparcenary property:- When a male Hindu dies after the commencement of this Act, having at the same time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the act. Provided that, if the deceased had left him surviving a female relative specified in class-I of the schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be under this
Act and not by survivorship.
Explanation:1:For the purpose of this Section, the interest of a
Hindu, Mitakshara coparcenary shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2:- …......
As the plaintiff's father died intestate leaving behind him female legal heirs ie., wife and daughters, his interest in the coparcenary property shall not devolve by survivorship and it will be accordance with the provisions of the act. Interest of the plaintiff's father shall be deemed to be the share that would have been allotted to him if partition of the property had taken place immediately after his death. If that is so, there would not be any coparcener joint family property for the plaintiff to claim share as a coparcener, after the amendment to
Hindu Succession Act i.e., Act in the year 2005.
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15.The admitted version of plaintiffs and defendant is that their father died in the year 2001, by which date the plaintiffs are not coparceners of joint family. By the date of coming into force of Act 39/2005, there is no existence of joint family in which the plaintiffs can claim right as coparceners, as the share of the plaintiffs father was deemed to be separated if partition took place immediately prior to his death. In view of the foregoing discussion, I find that there is no existence of joint and coparcenary property by the date of commencement of Act of 39/2005 in which the plaintiffs can claim share as coparceners.
16.The plaintiffs claim share in the schedule properties which are admittedly ancestral properties. The plaintiffs did not claim share immediately after death of their father. It is no doubt true that after the 2005 Amendment Act, there is right exist even if their father had expired before 2005 Amendment Act and they can claim partition as and when they feel to claim the share in the properties. The plaintiffs claimed 1/5th share in the schedule properties claiming as legal heirs of their father along with defendant. It is found that the schedule properties are ancestral properties and the plaintiffs cannot claim share as coparceners in the ancestral properties. However, it can be said that the plaintiffs can claim share in the share of their father who died intestate as their legal heir. The share of their father would be ½ in the schedule properties if partition took place immediately prior to his death in the year 2001 and the share of the the defendant who was coparcener along with his father by the year 2001 would be the other half. It is no doubt true that as the plaintiffs father died intestate his
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share in the schedule properties would devolve by way of succession on his legal heirs.
17.At this stage, it is worthwhile to refer a judgment relied by the learned counsel for the defendant reported in Prakash and others
Vs., Phulavati and others rendered on 16.10.2015, the Hon'ble
Supreme Court clearly held that a plain reading the statue (Amendment Act) itself suggests that a daughter has a right in coparcenary property on and from the commencement of the
Amendment Act. The Supreme Court held that 'An amendment Act of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective'. In the instant case, there was no express or intended stipulation which would make the amendment act retrospective in its application and by virtue of the
Amendment Act, right to coopercenary property would be available only to 'living daughters' of 'living coparceners' on 9 th September, 2005). It was further observed by the Hon'ble Supreme Court that this present ruling is applicable only in the cases of ancestral property, therefore, the daughters can still claim the share in their predeceased father's property, if the same was self-acquired property.
18.In the instant case, the plaintiffs claimed 1/5th share in the ancestral property of their father. Admittedly, the father of the plaintiffs died in the year 2001. The plaintiffs filed the suit in the year 2013. It is no doubt true that in 2005, our Hon'ble Apex Court has passed a landmark amendment to the Hindu Succession Act of 1956, granting daughters the right to inherit ancestral property along with their male relatives. But, now a small clause has been added to it by virtue of the judgment In the above referred judgment, the Hon'ble Supreme
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Court clearly held that the date of a daughter become a
coparcener is on and from the commencement of the act
referred supra that a daughter can only hold a right in the ancestral property if the father has died after this amendment came into force in 2005. In other words, the father would have to be alive till 9th
September, 2005, for the daughter to become a co-sharer of property along with her male siblings. Adding that, the amended provisions
of the Hindu Succession (Amendment) Act, 2005 do not have a
retrospective effect. In the above referred judgment by this
Court, the Hon'ble Supreme Court clearly held that the date of a
daughter become a coparcener is on and from the
commencement of the act.
19.The Hindu Succession Act of 1956 originally denied women the right to inherit ancestral property, allowing them only to ask for sustenance from a Joint Hindu Family. After the amendment was passed in 2005, the only restriction to remain was that women could not ask for a share if the property had been alienated or partitioned before
December 20, 2004, which is the date the bill was introduced. But, that was until the Supreme Court came up with the restriction's that a daughter's right to ancestral property does not arise if the father died
before the amendment of Hindu Law that came into force in 2005. In
the above said judgment referred by this Court, the Hon'ble Apex Court clearly held that daughters can only claim their ancestral property right, if father died after the amendment of Hindu Law. The Apex Court has
said that a daughter's right to ancestral property does not arise
if the father died before the amendment to Hindu Law, which
came into force in 2005. “The father would have to be alive on
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9 th of September, 2005, if the daughters were to become co-
sharers with their male siblings”.
20.Earlier, under the Hindu Succession Act, 1956, a daughter was not empowered to inherit rights in ancestral property. The Hindu Succession
Act, 1956, originally did not give daughters inheritance rights in ancestral property. They could only ask for a right to sustenance from a
Joint Hindu Family. But, this disparity was removed by an amendment to the Act on September 9, 2005. Later, the Government amended the
Act on September 9th, 2005 and empowered them to inherit the ancestral property. The only restriction in force after the passage of this amendment was that women could not ask for a share if the property had been alienated or partitioned before December 20, 2004 the bill was introduced. The Hon'ble Apex Court delivered landmark judgment
in Prakash and others Vs., Phulavati and others rendered on
16.10.2015 has now added another disqualification for women regarding their right of inheritance. Until now, they could not ask for a share if the property had been alienated or partitioned before
December 20, 2004, the date the bill was introduced. The landmark judgment delivered by the Hon'ble Supreme Court in Prakash's case, makes it imperative for the father to have been alive when the amendment came into force. Settling the law in the wake of a clutch of appeals arising out of High Court Judgments, a bench comprising
Hon'ble justice Anil R Dave and justice Aadarsh K Goel, recently
held that the date of a daughter becoming co-parcener (having equal right in an ancestral property) is ''on and from the commencement of the act”. The bench overruled the view taken by some high Courts that the amendment being a gender legislation that aimed at according
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to equal rights to the daughter in ancestral property by removing discrimination, should be applied retrospectively. Interpreting statutory provisions, the Hon'ble Apex Court in the above judgment shut
down the argument that a daughter acquires right by birth and
even if her father had died prior to the amendment, the shares
of the properties were required to be redefined. 'The text of the amendment itself clearly provides that the right conferred on a 'daughter of a co-parcener' is 'on and from the commencement' of the amendment Act. In view of the plain language of the statute, there is no scope for different interpretation than the one suggested by the text, “the Hon'ble Apex Court said”. Further, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intent, noted the Court, adding “even a social legislation cannot be given retrospective effect unless to provide for or so intended by the legislature”. About the applicability of the amendment to the daughters born before it was brought, the bench held that the new law would apply irrespective of the date of birth. “All that is required is
that the daughter should be alive and her father also should be
alive on the date of the amendment,” the Hon'ble Supreme
Court further said in the above judgment. The Hon'ble Court also held that alienation of ancestral property, including its partition, which may have taken place before December 20, 2004, in accordance with the law applicable at that time, would remain unaffected by the 2005 amendment, and those partitions can no longer be reopened by daughters. Therefore, daughters can inherit ancestral property,
if father died after amendment of Hindu Law in 2005. On 9 th
September, 2005, the Hindu Succession (Amendment Act) 2005
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Amendment Act came into effect and daughters in a Joint Hindu Family governed by Mitakshara law, were granted statutory right in the co- parcenary property (being property not partitioned or alienated) of their fathers. Historically, the Hindu Succession Act, 1956 did not confer any rights on a daughter to the ancestral property of her father. The
Amendment Act fuelled a debate on whether a daughter right in coparcenary property was available even prior to commencement of the amendment Act, i.e., were the rights granted to daughters in the co- parcenary property retrospective in their application?. The debate on retrospective application of the amendment Act has now been put to rest by the recent pronouncement of the Hon'ble Supreme Court in the case of Prakash and others Vs., Phulavati and others, rendered on 16 October, 2015. The Hon'ble Apex Court in the above said
judgment has held that the property rights of daughters are
prospective in their application i.e., to be available only if both
the father and the daughter are alive on the date of
commencement of the amendment Act (i.e., 9 September,
2005).
The main issue for consideration before the Hon'ble Supreme Court whether the amendment act was applicable retrospectively. This issue has been subject to divergent and often conflicting possession taken various High Courts in the past. In the instant case, Phulavati had filed a suit claiming partition and separate possession of her 1/7th share in her father's property (acquired by inheritance from his adoptive mother).
Phulavati's father passed away on 18 February, 1988. While the suit was pending, Phulavati amended her plaint claiming a share in her father's properties under the amendment Act. The Hon'ble Karnataka
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High Court ruled in favour of Phulavati holding that an amendment (in this case the Amendment Act) would be applicable to pending proceedings, even if such an amendment was prospective in its operation. This High Court order was challenged before the Hon'ble
Supreme Court.
Contentions:- The main arguments against Phulavati's case were as follows:- 1.Phulavati had a right only in the self acquired property of her father; 2)Phulavati's father passed away on 18 February, 1988 i.e., prior to the commencement of the Amendment Act. Accordingly, Phulavati could not be considered to be a co-parcener at the time of commencement of the Amendment Act; and 3) the Amendment Act would not be applicable in the instant case. Section 6 of Hindu Succession Act as it stood prior to the commencement of the Amendment Act would apply, which did not recognize daughter's right in co-parcenary property.
Judgment:-The Hon'ble Supreme Court in its judgment held that a plain reading the statue (Amendment Act) itself suggests that a daughter has a right in coparcenary property on and from the commencement of the Amendment Act. The Supreme Court held that 'An amendment Act of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective'.
In the instant case, there was no express or intended stipulation which would make the amendment act retrospective in its application and by virtue of the Amendment Act, right to coopercenary property would be available only to 'living daughters' of 'living coparceners' on 9th
September, 2005. The Hon'ble Supreme Court set aside the order of the
Hon'ble High Court of Karnataka and the matter was remanded to the
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Karnataka High Court for fresh decision based on the principal of prospective application of the Amendment Act laid down by the Hon'ble
Supreme Court.
The Hon'ble Supreme Court clearly held that the Amendment Act is prospective in its application, i.e., it respect to a Hindu family governed by Mitakshara law, a daughter would have a right in the ancestral property inherited by the father only if both the daughter and the father are alive at the time of commencement of the Amendment
Act. No distributions of such properties of persons who passed away prior to 9th September, 2005 can be reopened or questioned by daughters.
21.After going through the aforementioned principles and applying to the same factual matrix of the present suit and applying the ratio of the above landmark judgment delivered by the Hon'ble Supreme Court in
Prakash's case to the evidence adduced in the present suit, this Court is of the opinion that the plaintiffs are not entitled to seek partition of plaint schedule properties and moreover the plaintiffs also miserably failed to establish their joint and constructive possession over the plaint schedule properties. In the light of the Judgment of the Hon’ble Apex
Court, there is no need to delve deep into the aspect of relinquishment, as the plaintiffs have no right in the schedule properties. Hence, these two issues are answered in the negative to the plaintiffs and in favour of the defendant.
Issue No.4 :
22. What crystallized from the above discussion, observation and reason is that the plaintiffs miserably failed to establish that they are entitled for partition of plaint schedule properties. As a sequel to
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findings on issues 2 and 3 decided above, the suit of the plaintiffs fails and is hereby dismissed.
23. In the result, the suit is dismissed. In view of the
relationship between the parties, there is no order as to costs.
Typed to my direct dictation, corrected and pronounced by me in open court on this the 22nd day of July, 2019.
Addl. Senior Civil Judge, (FAC) Prl. Senior Civil Judge, Ananthapuramu
Appendix of evidence
Witnesses examined for
Plaintiffs Defendant
PW.1 : G.Venkataramanamma DW.1 : K.Kullayappa DW.2 : G.Lakshmi Reddy
Exhibits marked for plaintiffs
- NIL -
Exhibits marked for defendant
- NIL -
Addl. Senior Civil Judge, (FAC) Prl. Senior Civil Judge, Ananthapuramu